George: VA's erroneous interpretation of a statute is not CUE

George v. McDonough, 142 S.Ct. 1953 (2022)

HELD: VA’S FAILURE TO PROPERLY APPLY THE PRESUMPTION OF SOUNDNESS FOR DECADES WAS NOT CLEAR AND UNMISTAKABLE ERROR - BECAUSE THE FEDERAL CIRCUIT’S DECISION THAT INVALIDATED VA’S ERRONEOUS INTERPRETATION WAS A CHANGE IN THE INTERPRETATION OF THE LAW.

Summary: In 1977, the Board denied service connection for schizophrenia - finding that it pre-existed service. The Board made no finding as to whether the condition was also aggravated by service, as required by 38 USC § 1111. In 2003, VA amended its regulation to include the aggravation prong of the presumption of soundness. In 2004, the Federal Circuit held in Wagner v. Shinseki, that 38 USC § 1111 plainly includes an aggravation prong - meaning that the statute has always required VA to prove that a condition BOTH pre-existed service AND was NOT aggravated by service in order to rebut the presumption of soundness. In 2014, the veteran filed a motion to revise the 1977 decision on the basis of clear and unmistakable error (CUE) - arguing that VA misapplied the law.

The case goes all the way up to the Supreme Court, which determined that CUE did not include changes in law or changes in interpretation of the law - and that the Federal Circuit’s decision in Wagner was a change in the interpretation of the law.